Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee takes note of the Government’s first report. It requests the Government to provide additional information on the following points.

Article 1 of the Convention. The Committee notes that the Government has provided no information with regard to this Article, which requires each Member which ratifies this Convention to take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency. The Committee consequently asks the Government to provide a general overview of the measures taken to apply this Article.

Article 2. The Committee notes that article 23 of the Constitution of the Republic of Malawi provides that children are entitled to be protected from economic exploitation or any treatment, work or punishment that is, or is likely to: (a) be hazardous; (b) interfere with their education; or (c) be harmful to their health or to their physical, mental, spiritual or social development (paragraph 4), children being defined as persons under 16 years of age (paragraph 5). It notes that section 22(1)(a) of the Employment Act (No. 6 of 2000) provides that no person between the age of 14 and 18 years shall work or be employed in any occupation or activity that is likely to be harmful to the health, safety, education, morals or development of such a person. Referring to its direct request made in 2002 on the application by the Republic of Malawi of the Minimum Age Convention, 1973 (No. 138), the Committee notes that there is a discrepancy between the constitutional provisions, which provide for protection from hazardous work for children aged below 16 years, and the provisions of section 22(1)(a) of the Employment Act, which in accordance with this Article of the Convention prohibits work that is likely to be harmful to the health, safety, education, morals or development of all persons under the age of 18. Recalling that, under this Article, the term "child" shall apply to all persons under the age of 18, the Committee requests the Government to take the necessary measures to harmonize the provisions of the Constitution and the Act in order to ensure that no uncertainty arises as to the age of the children covered by the provisions of the Convention.

Article 3. The Committee notes that article 27 of the Constitution of the Republic of Malawi prohibits slavery and the slave trade, servitude and forced labour. It notes that section 4(1) of the Employment Act provides that no person shall be required to perform forced labour. According to section 4(2) any person who exacts or imposes forced labour or causes or permits forced labour shall be guilty of an offence and liable to a fine of K10,000 and to imprisonment for two years. The Committee takes note of the provisions of section 22, subsection 1, of the Employment Act, according to which "no person between the age of 14 and 18 years shall work or be employed in any occupation or activity that is likely to be: (a) harmful to the health, safety, education, morals or development of such a person; or (b) prejudicial to his attendance at school or any other vocational or training programme". It notes that, according to section 24, "any person who contravenes any provision of this Part shall be guilty of an offence and liable to a fine of K20,000 and to imprisonment for five years". The Committee also notes the information communicated by the Government to the Committee on the Rights of the Child in its initial report on the application of the Convention on the Rights of the Child (document CRC/C/8/Add.43 dated 26 June 2001) that sections 135, 167 and 265 of the Penal Code establish various offences in relation to abduction, trafficking and sale, with penalties ranging from five to seven years’ imprisonment (paragraph 370). It notes that there is no specific policy or programme regarding the sale, trafficking and abduction of children in Malawi (paragraph 371).

The Committee considers that the provisions of the Employment Act offer a sufficient basis for the prohibition of hazardous work and are in line with the Convention’s requirement in respect of clause (d) of Article 3. The Committee notes however that the Government has provided no information as regards the measures taken to secure the prohibition and elimination of the worst forms of child labour with respect to each of the clauses (a)-(c) of this Article. The Committee therefore asks the Government to indicate, for each of the clauses (a)-(c), the measures taken or envisaged to secure the prohibition and elimination of the worst forms of child labour with regard to all persons under the age of 18. It also asks the Government to provide the Office with a copy of the Penal Code.

Article 4, paragraph 1. The Committee notes that section 22(2) of the Employment Act provides that the Minister may, in consultation with relevant organizations of employers and employees, specify, by notice published in the Gazette, occupations or activities which, in his opinion, are likely to be harmful to the health, safety, education, morals or development of persons between the age of 14 and 18 years. It asks the Government to communicate information on the occupations or activities determined by the Minister in application of section 22(2) of the Employment Act and of these provisions of the Convention. It also asks the Government to supply a copy of the relevant texts and to communicate information on the consultations that were to be held with the organizations of employers and workers concerned.

Paragraph 2. The Committee notes the information communicated by the Government in its report that it will indicate the measures taken to identify where the types of work determined in application of Article 4, paragraph 1, exist once it has carried out a national survey together with the other two social partners. The Committee trusts that the Government will be in a position to communicate the required information in its next report.

Paragraph 3. The Committee notes the information communicated by the Government in its report according to which the list of the types of work determined under paragraph 1 of this Article has been periodically examined by labour inspectors, though they have limited knowledge of the worst forms of child labour. The Committee draws the Government’s attention to Paragraph 15(c) of the Worst Forms of Child Labour Recommendation, 1999 (No. 190), according to which other measures aimed at the prohibition and elimination of the worst forms of child labour might include providing appropriate training for the government officials concerned, especially inspectors and law-enforcement officials, and for other relevant professionals. In the light of these provisions, the Committee requests the Government to indicate the measures it intends to take so as to ensure that the said list is periodically examined by occupational safety and health specialists and revised as necessary. It also asks the Government to provide the Office with a copy of any revised list and to indicate the consultations which have been held with the employers’ and workers’ organizations in accordance with the provisions of this Article.

Article 5. Noting that the Government has provided no information with respect to this Article, the Committee asks the Government to indicate the mechanisms established or designated, after consultation with employers’ and workers’ organizations, to monitor the implementation of the provisions giving effect to this Convention, and to provide information on their functioning, including any extract of reports or documents. The Committee also asks the Government to indicate the consultations which have been held with the employers’ and workers’ organizations in accordance with the provisions of this Article.

Article 6. The Committee notes that an ILO-IPEC programme was due to begin in 2001 in the framework of which all programmes of action were to be designed and implemented to eliminate the worst forms of child labour. It notes with interest that the Government has set up an inter-ministerial task force composed of relevant government institutions and employers’ and workers’ organizations and other United Nations agencies to develop a national action plan to eliminate the worst forms of child labour. According to the Government’s report, the mandate of the task force includes to sensitize policy-makers to understand the concept of the child labour situation in Malawi; to collect information on the forms and extent of the child labour phenomenon in Malawi; to conduct a national child labour survey; to develop, in collaboration with social partners, stakeholders, NGOs and other relevant bodies, a national plan of action for eliminating the worst forms of child labour. The Committee asks the Government to communicate further information on the programmes of action envisaged, on the functioning and results obtained by the inter-ministerial task force, and on the consultations which have been held with relevant government institutions and employers’ and workers’ organizations in accordance with the provisions of this Article. The Committee also asks the Government to indicate the extent to which the views of other concerned groups have been taken into consideration.

Article 7. The Committee notes the information communicated by the Government in its report according to which it has sensitized local employers’ and workers’ organizations, chiefs, labour officers and other extension workers on the worst forms of child labour in all the three regions of Malawi with the financial assistance of UNICEF. It notes the Government’s statement that any person who contravenes this Convention shall be guilty of an offence and liable to a fine of K20,000 and to imprisonment for five years. The Committee notes that such a penalty is provided for by section 24 of the Employment Act, in case of violation of the provisions of Part IV of the Act, which only concerns hazardous work. It asks the Government to indicate which provisions apply in case of violation of other types of the worst forms of child labour, i.e. those corresponding to clauses (a)-(c) of Article 3. The Committee also asks the Government to communicate information on the actual application of these sanctions. It asks the Government to communicate information on the measures taken with regard to each of the clauses (a)-(e) of paragraph 2 of Article 7 and, if any of the measures are time-bound, to specify the time frame. The Committee notes from the Government’s report that the Ministry of Labour has the official mandate to monitor, control and prevent child labour through labour and factory inspections. It asks the Government to communicate additional information concerning the authorities responsible for the implementation of the provisions giving effect to this Convention and the methods used for the supervision of such implementation, as regards each of the types of the worst forms of child labour listed under Article 3.

Article 8. The Committee notes from the Government’s report that it has been collaborating with the social partners, NGOs, religious organizations, political leaders and other actors on child labour. It asks the Government to indicate any steps taken to assist other member States in giving effect to the provisions of this Convention through enhanced international cooperation and/or assistance, including support for social and economic development, poverty eradication programmes and universal education, in conformity with these provisions of the Convention.

Part IV of the report form. The Committee notes that the Government has signed a Memorandum of Understanding with the ILO on a technical cooperation project to establish an office in the framework of the International Programme on the Elimination of Child Labour (IPEC). It asks the Government to give a general appreciation of the manner in which the Convention is applied in Malawi, indicating any practical difficulties encountered in the application of the Convention, or any factors which may have prevented or delayed action against the worst forms of child labour.

Part V of the report form. The Committee notes from the Government’s report that a countrywide child labour survey was to be conducted by the Ministry of Labour in collaboration with the National Statistical Office to find out the extent of child labour. It notes the Government’s indication that the results of the survey will be sent to the Office as soon as they are known. It hopes that the Government will be in a position to communicate these results in the near future, and that they will contain information on the nature, extent and trends of the worst forms of child labour, the number of children covered by the measures giving effect to the Convention, the number and nature of infringements reported, and penal sanctions applied.